These cases can be tough to prove, but some are occasionally successful. Perhaps the most infamous of these cases was that of Marshall v. Marshall, a U.S. Supreme Court case that involved the estate of an elderly billionaire, of which his son was executor, and his much younger wife, former Playboy Playmate Anna Nicole Smith.

It was difficult not to see the fact pattern in that case and jump to the conclusion that Smith had married the 89-year-old oil tycoon for his riches. But state law gives spouses broad legal powers over one’s estate and assets after they die. Proving that they shouldn’t receive it can be difficult, though not impossible.more

Marshall v. Marshall

The Marshall case was a rare example of a probate litigation case that was weighed in federal courts. Most are considered in state courts. The federal court may have jurisdiction in some disputes where federal matters are at issue or, as in this case, a substantial amount of money is involved.

Smith had married the elder Marshall just one year before his death, and sought to obtain half of his estate.

However, the specific question before the U.S. Supreme Court in 2006 was whether a federal court in California had jurisdiction of a probate matter out of Texas. In other words, the matter before the Supreme Court wasn’t whether Anna Nicole Smith was entitled to a share of her late husband’s estate, but rather which court was best to decide it. As far as that, the SCOTUS sided unanimously with Smith, allowing her to continue to pursuit of her case.

Just one month later, the billionaire’s son, executor of his estate, died. Smith herself died six months later. However, both parties’ estates continued warring. In 2011, the parties were back before the U.S. Supreme Court, with the son’s estate challenging a bankruptcy court’s award of hundreds of millions of dollars in damages. The U.S. Supreme Court in that matter ruled against Smith, finding the bankruptcy court lacked the jurisdiction to enter a final judgment on the matter because it wasn’t a core bankruptcy proceeding related to the underlying Title 11 filing. Smith’s counterclaim, on which the award was based, was not a core proceeding. This was an affirmation of the lower appellate court’s reversal of her damages award.

Proving a Marriage is Really an Elder Abuse Scam

Although a belief that Smith’s marriage to Marshall was merely a ploy for his money was at the center of the case, that fact was never the biggest issue litigated.

In truth, marriage scams often occur without many legal repercussions. That’s because they are difficult to prove, which is likely why Fort Lauderdale probate litigation lawyers are seeing it happen more often.

In a fair number of cases, caregivers are forcing elders with limited mental capacity into a late-in-life marriages for purposes of taking advantage of them financially. One can challenge asset distribution in such a case if one is able to prove fraud, coercion or undue influence.Both men and women can be victims of this type of elder financial abuse, sometimes referred to as “sweetheart scams.” They are most often carried out when the elder has suffered some deep personal loss (i.e., death of a spouse) and is left feeling isolated and lonely.

Although other loved ones may not have a problem with their parents spending money on a younger romantic interest later in life if that is what makes them happy. However, the concern is if that person ends up scamming the elder and leaving them destitute in their last days.

A probate litigation attorney can help prevent this by helping to protect certain assets from being taken by putting them into a trust. It is important to take action before the elder person becomes too vulnerable.

If you think your loved one married while lacking the mental capacity to consent to such a contract, talk with an estate attorney. There is a low capacity bar to enter into marriage, so such a case can be difficult, but that doesn’t mean it’s impossible. Marriages can’t be voided post-death, legally speaking, unless you can show coercion, fraud or undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Stern v. Marshall, June 23, 2011, U.S. Supreme Court

Proving undue influence is not a simple matter or low bar. One has to prove that the victim’s mind was “so controlled or affected by persuasion or pressure, artful or fraudulent contrivances or by the insidious influences of persons in close confidential relations” that he or she isn’t knowingly or voluntarily acting of their own accord, but instead carrying out the will of someone else. This was outlined in the precedential 1925 Florida Supreme Court case of Peacock v. Dubois.

In most cases, it is the plaintiff asserting undue influence who typically has the burden of poof. Prior to 1971, the burden of proof in these cases was reached with enough evidence to raise the undue influence presumption, at which point the proof burden shifted to the defendant, who then had to prove it didn’t occur. Then there was the key Florida Supreme Court case of Carpenter v. Carpenter, justices ruled that even the establishment of an undue influence presumption didn’t shift the proof burden to the defendant, at least as it pertained to will contests. About a decade later, the court decided the same rule in cases alleging inter vivos transfers.more

In 2002, legislators approved F.S. 733.107, which further clarifies the burden of proof in contesting wills and undue influence presumption.

Despite this guidance, our probate lawyers in Fort Lauderdale recognize that case of undue influence are rarely cut-and-dried. If you believe that your loved one’s will has some peculiarities or deviates from what you were told or led to believe about it, it’s usually worth meeting with a probate litigation attorney to determine whether contesting the will is worth your while.

The Carpenter case outlined seven signs (not all-encompassing, depending on the case) that tended to indicate undue influence. Those were to assess whether the person accused of undue influence was:

• Present when the decedent made their will or trust;
• Present at times when decedent talked about creating their will or trust;
• The one who recommended a lawyer to handle decedent’s estate work;
• The one who knew the contents of the will or trust before it was completed;
• The one who instructed the attorney on how to complete the trust or will;
• The one who found witnesses to the will;
• In physical possession of the will after it was executed.

These can make a strong case for undue influence when contesting a Florida will, but other factors may prove just as if not more important. For example, there have been later will contest cases in Florida that didn’t focus much on the Carpenter factors at all, but still managed to prove undue influence on things like isolation of the decedent prior to death.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

In Re Estate of Carpenter, 1971, Florida Supreme Court

More Blog Entries:

Family Conflicts Are Top Threat to Your Inheritance, Estate Planning Key, May 14, 2018, Fort Lauderdale Probate Attorney Blog

A recent poll by TD Wealth revealed 44 percent of attorneys, accountants and trust officers in Florida indicated family conflicts were the biggest snag when it comes to estate planning. Part of the problem is people have unrealistic expectations. While most expect to inherit more than $100,000, Ameriprise Financial reports most people receive less than that. Almost 7 in 10 of those expecting an inheritence were never told how much they should expect, which led to substantial confusion and conflict.

Another issue is people increasingly have multiple ex-spouses, one or both my have children from prior unions and one spouse may be much younger than the other. These are fact patterns we know have the potential to lead to trouble. Such is the case in probate litigation conflict in Indiana that the state supreme court in Indiana has just agreed to consider. In Gittings v. Deal, an adult woman claims she was removed from her father’s estate by her stepmother, and subsequently her stepbrother raked in more than $3 million in profits on property she claims they should have shared.

Here, the father/ decedent established trusts in 1985, along with his wife (plaintiff’s stepmother), indicating that when they died, a third of each estate would go to plaintiff, her stepbrother and then to any children they had.

The father died 10 years later, and plaintiff says her stepmother eliminated her as a beneficiary and trustee and didn’t tell her. Plaintiff talked to a lawyer and agreed to sign amendments transferring the properties in question to her stepmother’s trust. However, her lawyer was never given a copy of that trust showing plaintiff was removed as a beneficiary. When the stepmother died two years after her father, a second change to her trust left the remainder of what was left only to her son and his children. When plaintiff learned she and her son had been eliminated as beneficiaries, her stepbrother told her there was nothing left of the inheritance after medical bills, nursing home expenses and funeral costs. She believed him. But it wasn’t true. What she didn’t know was her stepbrother deeded several properties from that trust to himself. Within 13 years, he’d raked in more than $3 million in gas and oil royalties, lease payments and rental payments.

Plaintiff was in the dark about all of this until 2011, when an attorney contacted her to tell her.

Plaintiff filed a counterclaim, asserting breach of mutual estate plan/ implied trust, self-dealing, conversion and breach of fiduciary duty. However, the trial court ruled in favor of plaintiff and appellate court affirmed. The primary issue was that the statute of limitations had already passed, despite an additional finding that the conduct underlying her claims was improper and perhaps illegal. The court of appeals noted its reservations, but it felt it had no choice but to rule in stepson’s favor.

It remains to be seen whether that ruling will be upheld, now that the Indiana Supreme Court has granted transfer.

As our Fort Lauderdale probate litigation attorneys know, typically the best way for your relatives to avoid probate is to be meticulous with your estate planning efforts. It’s also important to communicate your plans to family members so there are no surprises upon death, and beneficiaries can understand the how and the why and everyone’s on the same page.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Say hello to the No. 1 threat to your $11 million inheritance, April 11, 21018, By Darla Mercado, CNBC

More Blog Entries:

Does Florida Probate Court Require Families to Pay Decedent’s Debts? March 28, 2018, Fort Lauderdale Estate Planning Attorney Blog

Because contesting a will in Florida can be successful under a number of circumstances, ensuring your wishes will be followed as you have outlined requires working closely with a probate lawyer in drafting these changes.

Recently, the passing of a popular South Florida sports broadcaster sparked a fierce – and sadly public – feud between his adult children and his wife/ mother of his two youngest children, both minors. According to The News-Press in Fort Myers, the broadcaster wrote his oldest son and daughters from his first marriage out of his will in June 2015 – the day after receiving a stem cell transplant from his oldest son. He died about 1.5 years later, though his oldest didn’t learn of the change in his will until this past December, when his stepmother asked them to sign formal documents promising not to contest the will.

His inheritance was instead left to his wife of 13 years. The older siblings say they do not plan to contest the will, but garnered headlines by publicly expressing their emotional sadness over the situation. Under Georgia law (where the will was written), heirs must be given the opportunity to contest a will if they are not beneficiaries. However, the siblings have been quoted as saying they resent having to hire attorneys to be involved in a legal drama in which they want no part.

In general, spouses and minor children cannot be disavowed or disinherited from one’s will. However, adult children and other relatives may have lesser grounds on which to contest.

As cruel as it might sound to disinherit a child, even an adult one, our probate litigation attorneys in Fort Lauderdale know there are circumstances under which it makes sense. In some cases, there is no relationship. In other instances, parents may feel certain children are more well-off than others and thus don’t have as much need for the money or assets. Often, though, the way it’s worded matters. Using emotional verbiage in the legal document could increase the chances an heir will contest the will. Omissions might not be a better bet, considering some judges may consider the omission an error and the court will generally shy away from keeping someone from getting assets it might seem the deceased would have wanted them to have.

In some cases, if your estate is large enough, it can be smart to leave token amounts to estranged relatives, just to abate the infighting and lessen the chances of them contesting the will.

Some of the grounds under which Florida probate laws allow a contested will include:

• Lack of capacity. The person contesting the will can assert the testator lacked mental capacity to make the will and/ or understand the nature of how the assets were being distributed. This is often established with a diagnosis of psychosis or dementia or through witness testimony of irrational conduct.
• Undue influence. This could be asserted if there is evidence someone (friend, relative, adviser, health care worker, etc.) improperly exerted pressure on the testator, compelling or coercing them to execute the will in a manner they otherwise might not have.
• Fraud. This occurs when changes to the will were based on misrepresentation. For instance, if an adult child lies to a parent about the actions of a sibling, causing the parent to disinherit that sibling, the will may be successfully contested.

Again, having an experienced probate lawyer help you draft your will can help avoid these potential problems from arising after your death.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Craig Sager Jr., 29, shares emotions over Craig Sager Sr. excluding him from will, Jan. 12, 2018, By David Dorsey, The News-Press

More Blog Entries:

“The Evil Stepmother”: A Stereotypical – But Common – Dynamic in Florida Probate Litigation, Trust and Estate Disputes, Feb. 25, 2018, Fort Lauderdale Probate Litigation Lawyer Blog

The term “intestate succession” refers to the distribution of one’s estate when one dies absent a valid will. The process varies from state-to-state, but generally follows that one’s surviving spouse and other heirs will receive decedent’s possessions in order of descent.

Florida’s intestate succession laws are outlined in F.S. Chapter 732. It should be noted that state laws can frequently change, so it’s important to discuss your options with a probate litigation lawyer if you have concerns about your rights and obligations.

Only assets that would pass through your will would be affected by intestate succession laws. That means things like your life insurance proceeds, retirement account funds, jointly-owned property or property that’s been transferred to a living trust generally isn’t going to be subject to Florida intestate succession provisions.

Although no two people will have the exact same situation, the state of Florida has outlined a number of common scenarios that are applicable for many families. Much will depend on whether you have a surviving spouse, children, parents or other close relatives when you die.

In general, if you have:

• Spouse but no descendants – Spouse will inherit everything;
• Children but no spouse – Children inherit everything;
• Spouse and shared descendants (with decedent having no other descendants) – Spouse will inherit everything;
• Spouse with decedent having descendants from another relationship – Spouse will inherit half of the property that is intestate, while the surviving descendants will inherit the other half;
• Parents but no spouse or descendants – Parents inherit everything;
• Siblings, but no spouse, descendants or parents – Siblings inherit everything.

We saw that last scenario last year when famed singer Prince’s six siblings inherited his $200 million estate when he died without a will.

The one way to control this distribution if it’s not agreeable to you is to have a will in place. Similarly, spouses should not presume they will automatically receive all their partner’s property, particularly if there are descendants or if some of that property was not subject to intestate laws (i.e., retirement accounts, life insurance, etc.). It should be noted that adopted children and (generally) those born outside of marriage are considered descendants, as well children conceived by decedent but not born prior to death. Foster children, stepchildren and children placed for adoption will not be entitled to an inheritance. Grandchildren would only have rights to one’s inheritance if their parent dies before the grandparent.

In cases where disputes arise, the matter may end up in probate litigation. Our experienced Fort Lauderdale probate litigation lawyers can help.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Haven’t Done A Will Yet? 2017, By Barbranda Lumpkins Walls, AARP